Clifford Irving's Legal Novels - 02 - FINAL ARGUMENT - a Legal Thriller (31 page)

“Back in trial, in April ‘79, you believed Morgan was guilty, isn’t that so?”

“Sure, but the kid kept telling me he didn’t do it.”

“That didn’t sway you to believe him?”

“Can you raise corn on concrete?” Oliver said.

“Then why’d you put him on the witness stand?”

“I told him, ‘Darryl, don’t get up there.’ He insisted.”

“He, not you?”

“You think I’m that dumb? He was gonna have his say if it harelipped every mule in Georgia.”

“But when he was on the stand, he never really told his version of what he and William Smith did that night.”

“That’s right. I knew it’d hurt him. Jury’d find him guilty, which they were going to do anyhow, but then they’d give him death for making up such a ridiculous lie. I kept him away from that story of his. I just let him say, ‘No, I didn’t kill no one.’ I figured that’s all he really wanted to do.”

“Gary, I want to run a few facts and theories by you, if you don’t mind. Just consider that you’re singing for your supper.”

“If I can help that kid, I’ll do it.”

I told him just about everything that had troubled me since I had become involved in
Florida v. Morgan
the second time around. He already knew about Jerry Lee Elroy, and I told him about my hunch that Floyd Nickerson had also lied about Darryl’s confession, and how Carmen Tanagra had all but confirmed it. And about the odd coincidence that had sent Nickerson from JSO to a plush job at a ZiDevco country club village near Gainesville, and about Neil Zide’s slip when at first he’d denied any knowledge of how Nickerson got the job but somehow knew the date of the detective’s departure for Orange Meadow. About the violent death of Victor Gambrel, security chief for Zide Industries—the man who had arrived at the Zide estate only a few minutes before the Jacksonville Beach patrol car. “So what’s your theory?” Oliver asked.

“Let’s assume for the sake of argument that your old client and my new client is telling the truth. He was there at the Zides’—he admits that. But he didn’t pull the trigger on the gun that never turned up.”

Oliver looked at me carefully. “Well, Zide didn’t turn that gun on himself, that’s for sure. And Mrs. Zide didn’t cut her own face that badly.
Someone
did it.”

“Someone who looks like Darryl?”

“Not many fit that bill.”

“Someone who
doesn’t
look like Darryl?”

“Only other people around were Mrs. Zide and her son.”

“Yes,” I said.

“Could be. Unlikely, but could be.”

“Why unlikely?”

“She got cut bad, Ted.”

“But not necessarily by a burglar.”

He mulled that over for a while, as I had done on other occasions. “Husband might have cut her. And then she shot him.”

“It’s possible.”

“You don’t sound convinced.”

I asked Oliver how often he’d heard of a middle-aged multimillionaire cutting his wife in the face with a knife. While he was formulating an answer, I added, “In the presence of his adult son.”

Oliver finally said, “Not a good bet. But that doesn’t mean it couldn’t happen.”

“Set that aside for a while. Suppose Darryl and William Smith came there to rob the estate, which is what Darryl says happened. And they arrive in the midst of an argument, and get scared by someone, and run off. Darryl says he saw Connie Zide outside on the terrace, in a bathrobe. So she might well have seen
him.
Then the family argument resumes, and Zide cuts his wife. She shoots him. Kills him. Maybe she didn’t mean to do it, but there he is, dead on the patio floor. She freaks out. It’s justifiable homicide, maybe, by reason of self-defense, or maybe it’s manslaughter. Or maybe it’s murder. She doesn’t really know. She’s not thinking clearly. So she says, ‘Hey, I’ll blame it on Darryl Morgan. Just a big ignorant nigger. And he was
here.
That’s a fact.’ “

Oliver shook his head slowly. “That would make her out to be a mighty mean woman. She didn’t strike me that way.”

“No, she’s not mean,” I said. “But you never know, do you?”

He was silent awhile, but I could tell that the taste of the thought intrigued him. “You think that’s what happened?”

“Not really.” The truth is, I couldn’t imagine the woman I had made love to, the woman who had wept in my arms on Cumberland Island, deliberately pointing the finger of guilt at a young man she knew to be innocent; proclaiming, “He did it.” She would have realized that her word—and Neil’s, if she convinced him to go along with her story—would be enough to put Darryl away for life or send him to the electric chair. But she hadn’t wanted Darryl to die; I remembered that. She had felt for him as a human being.

But maybe she didn’t want him to die because she knew that he was innocent.

Oliver stroked his jowls and said, “How does Floyd Nickerson getting that job tie in with the rest of it?”

“It’s pretty blatant, but it could have been a payoff.”

“And Gambrel’s murder?”

“Maybe that doesn’t tie in at all. You know how it is when you’re trying to shape a theory of defense. You clutch at everything and anything.” Finishing my coffee, I called for the check. “You were an investigator before you took up lawyering, and Beldon told me you were pretty good at it. Why don’t you sniff around? You could talk to potential witnesses. I never sat down with the security guard back then—he may have seen something that he didn’t report to the police. The deal is, if I win the appeal over in Tallahassee, and there’s a hearing or a retrial, I’ll ask you to sit second chair with me. For whatever’s your standard fee.”

“How much money are you making out of this?” he asked.

“Diddly squat.”

“Well, I’ll take a fair half of your diddly.”

I had watched Oliver drinking. He seemed to be taking it easy, in control. I gave him a Xerox copy of my notes.

Changing the subject, I said, “Gary, when I was down at Raiford I assaulted a prison official. I broke his nose.”

Oliver’s eyes widened. “No shit.”

“When the moon is full, I lose control. Turns out it’s a second- degree felony. Will you represent me in Bradford County? Not for diddly, but for whatever your normal fee is. And we won’t argue about that.”

“Hell, you got werewolf tendencies and you broke a prison official’s nose. Who’s gonna argue with you?”

In a week’s time he called me in Sarasota. He had gone down to Bradford County and poked around. Clive Crocker was willing to drop civil charges in return for payment of his medical bills, plus five thousand dollars as compensation for his physical suffering and the emotional humiliation in front of his colleagues. He would sign a waiver of prosecution, meaning he would agree not to testify. Then it was up to the state attorney’s office in the county; they could still go forward if they felt they could win the case through other means, with other witnesses.

“Why would they do a shitty thing like that?” I asked.

“Hey, you were a prosecutor,” Gary Oliver said. “You tell
me
why they’d do it.”

“To be shitty.”

“And that happens, as we both know. You got to risk it.” He chuckled in my ear. “You know, if they nolle-pros the case, Ted, they’re gonna want you to sign a waiver of liability against the sheriff’s office.”

“Anything else?” I asked. “Would they like me to bend over in front of the courthouse and take it up the
culo
at five bucks a man for the sheriff’s annual picnic?”

But when I got home I closed a tax-free mutual fund, and the next day I had Ruby mail a certified check. I thought of signing it
Fuck you.
Who reads signatures? But I scrawled my name instead.

In Sarasota County, Toba finished her deposition. She was told by the wolf spider woman’s lawyer that a settlement of $75,000 would be acceptable at this early stage of the proceeding. If not, Mrs. Hart was going to court to sue for half a million.

My fork paused in midair over the pasta salad. I looked at Toba across the dinner table. “This is God’s revenge on me for being a lawyer.”

“What do you want to do?” Toba asked.

“I want to import some Durango scorpions for Mrs. Hart’s laundry hamper and some Brazilian piranha fish for her toilet bowl.”

After dinner I began packing. I told Toba that I had to make oral argument before the Supreme Court in Tallahassee in six days. She looked bewildered. “I thought you’d lost that death penalty case last spring.”

“I lost it
then
—I want to try and win it
now.”

“So you’re flying up nearly a week ahead of time?”

“There are things I need to do. People I want to talk to. Judges I have to bribe.”

“Lawyers should marry other lawyers,” Toba said gloomily. “That’s what they deserve.”

The next day I bumped into Harvey Royal in the men’s room at Royal, Kelly and told him that I was leaving for the north again.

“Ted, this case has become an obsession.”

“Yes,” I said, “and you should try it, Harvey. Aside from a few aches and itches in unmentionable places, obsession brings out the best in a man.”

In the Florida Supreme Court, a lawyer is allotted half an hour to persuade the state’s seven justices that a human being shouldn’t be strapped into the electric chair and burned to death.

The judges looked at me with great interest. I thought: Yes, there’s hope. I can do it. They will
see.

To my left on the podium was a row of small lights. During my given half hour the lights would change from green to white, to warn me when my time was nearly up. When the lights flashed red, that was the end. You had to finish your sentence and step down.

I opened oral argument by pointing out that throughout the trial twelve years ago Judge Bill Eglin had called Darryl Morgan by his first name, had even called him “boy,” and in doing so had demeaned the defendant and poisoned the minds of the jury. Defense counsel at the time had not objected.

One of the younger judges raised her hand and said, “Mr. Jaffe, which tree are you barking up? If you’re arguing that the trial judge was wrong in what he did, you’re estopped by procedural default, because, as you pointed out, there was no objection made by defense counsel. So we won’t listen to that. If you’re arguing ineffective assistance of counsel, I have to remind you that we’ve been down this road before in
Morgan.
Has anything changed?”

“I pray that what’s changed,” I said, “is the court’s willingness to

be swayed by the interests of justice and mercy.” Looking into the judge’s ice-blue eyes, I quickly added, “In addition, there’s the new factor of perjured testimony by a state witness back in 1979. You have copies of his affidavit in front of you, Your Honors. I alluded to it in my opening statement.”

The chief judge adjusted his bifocals and glanced at the papers in front of him. “Counselor, I have a problem here. I’m looking at the trial record, where the state prosecutor is listed as Edward M. Jaffe. Now I’m looking at your supporting affidavit—the appeal attorney is Edward M. Jaffe. Are there two Edward M. Jaffes practicing law in the state of Florida?”

“Not that I know of, Your Honor.”

“Then you were the prosecutor at the original trial?”

“Yes, I was.”

“That’s already sufficiently irregular for me to wonder what exactly is going on and why it’s been permitted. But added to that, Mr. Jaffe, is the fact that the witness you now claim was perjuring himself at the trial … why, he was
your
witness!”

“Yes, that’s a fact.”

The judge’s eyes narrowed. He spoke into his microphone in a stage whisper. “Did you suborn perjury, Mr. Jaffe?”

He knows I didn’t, I realized, but he’s decided to have a little fun and games at an appeal hearing. Why not? Nothing at stake except a few decades of a dumbass nigger’s life.

I explained the circumstances of my meeting Jerry Lee Elroy in Sarasota, and Elroy’s admission to me. While I was doing that, the light bulbs turned from green to white.

“Five minutes, Counselor,” one of the junior judges said cordially. I made my final plea.

The judges retired.

In ten minutes they were back in their seats at the horseshoe-shaped bench.

The chief judge said, “We don’t intend to draw this matter out and leave the appellant in suspense. This court, more than most others, understands the gravity of a death sentence. This court also understands the desperate wish to take a second bite at the apple, and stresses that it will not tolerate collateral proceedings whose only purpose is to vex, harass, or delay. We believe it is unseemly for a prosecutor to wear one hat at one trial and, even with more than twelve years having passed, don another hat for an appeal hearing. We suspect that the Florida Bar Association shares this opinion. It is our view that Mr. Morgan’s trial was not perfect few are but neither was it fundamentally unfair. No relief is warranted.”

The judge tapped his gavel on the table. The light bulbs turned red.

My deepest ambition, to argue before a supreme court and save an innocent man’s life, had danced before me and slipped away. The state wanted Darryl Morgan to die.

“You’ve made a serious mistake,” I said.

That was completely out of line. The chief judge said, “What did you say?”

“I said, Judge—because I know more about this case than you do —that you’ve made a serious mistake.”

“Mr. Jaffe, we could hold you in contempt for that remark.”

“You could indeed,” I said. And I left the courtroom.

Chapter 23